Opinion
2:98-CV-0154.
February 27, 2001.
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff CHARLES BREWER, acting pro se and while a prisoner incarcerated in the Texas Department of Criminal Justice, Institutional Division, has filed suit pursuant to Title 42, United States Code, Section 1983 complaining against the above-referenced defendants and has been granted permission to proceed in forma pauperis.
By his May 20, 1998, Amended Complaint, plaintiff stated he was labeled a "snitch" after filing a grievance informing prison officials that two inmates were making shanks out of a mirror on November 26, 1997. Plaintiff then alleges that, in a "gang-related hit" on March 9, 1998, he was attacked in the dayroom by 3 black inmates and one white inmate, who beat him brutally while the picket officer failed to help plaintiff.
Three separate Briefing Orders were subsequently issued, to which plaintiff responded on June 29, 1998, October 26, 1998, and March 29, 1999, respectively.
Plaintiff alleges he was transferred from the Robertson Unit to the Clements Unit after being caught with a shank. Plaintiff's grievances to Robertson Unit personnel concerning being in danger from the "Bloods", the Aryan Nations, and the Aryan Brotherhood or Aryan Circle received the response that plaintiff had been transferred to the Clements Unit PAMIO program between July 19, 1997, and November 14, 1997, resolving any safety issues plaintiff complained of.
Plaintiff's affidavit attached to his June 29, 1998 Questionnaire response.
PAMIO is the acronym for the Program for theAggressive Mentally Ill Offender. This is a treatment program designed to be an alternative to administrative segregation for the aggressive mentally ill offender who does not benefit from traditional programs for the mentally ill offender. Its goals are to provide mental health treatment and control the inmate's behavior while he is incarcerated and to provide therapeutic experiences to reduce the likelihood that he will behave aggressively after release. The PAMIO program utilizes behavior therapy techniques to reduce hostile aggression through positive reinforcement, extinction or response competition.
Plaintiff's Step 2 grievance #60471 attached to his original complaint.
Plaintiff then alleges a "hit" followed him from the Robertson Unit to the Clements Unit; however, plaintiff also alleges the attack forming the basis for this complaint was the result of gang activity by inmates who had unsuccessfully attempted extortion. He states he informed defendants SANDERS, PALMEIHER, and DUFFY that his life was in danger but that they all refused to single cell him in protective custody, leaving plaintiff vulnerable to a March 9, 1998, attack by several inmates in the dayroom. Plaintiff alleges defendant ROACHE knew some of the inmates and allowed them to beat him, simply watching as the attack occurred. Plaintiff states he suffered injuries requiring stitches in his lip and surgery to repair a ruptured hernia.
Plaintiff's June 29, 1998 Questionnaire response at question no. 30.
Plaintiff's June 29, 1998 Questionnaire response at question nos. 1-8 and plaintiff's October 26, 1998 Questionnaire response at question nos. 1-18.
Plaintiff's June 29, 1998 Questionnaire response at question no. 19.
Plaintiff's June 29, 1998 Questionnaire response at question nos. 9-12 and plaintiff's October 26, 1998 Questionnaire response at question nos. 19-22.
Plaintiff's June 29, 1998 Questionnaire response at question no. 23.
In his May 20, 1998, Amended Complaint, plaintiff states that, as relief, he wants "capital murder charges be asked", compensation for the medical care he had to pay for, and a return to trusty class status. By his March 29, 1999, response to Question no. 2 of the Court's third Questionnaire, plaintiff states he wants to be returned to minimum custody where he can obtain good time and makes no mention of monetary relief.
JUDICIAL REVIEW
When a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity, the Court must evaluate the complaint and dismiss it without service of process, Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990), if it is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A; 28 U.S.C. § 1915(e)(2). The same standards will support dismissal of a suit brought under any federal law by a prisoner confined in any jail, prison, or other correctional facility, where such suit concerns prison conditions. 42 U.S.C. § 1997e(c)(1). ASpears hearing need not be conducted for every pro se complaint. Wilson v. Barrientos, 926 F.2d 480, 483 n. 4 (5th Cir. 1991).
A claim is frivolous if it lacks an arguable basis in law or in fact, Booker v. Koonce, 2 F.3d 114,115 (5th Cir. 1993);see, Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).
Cf. Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986) ("Of course, our discussion of Spears should not be interpreted to mean that all or even most prisoner claims require or deserve a Spears hearing. A district court should be able to dismiss as frivolous a significant number of prisoner suits on the complaint alone or the complaint together with theWatson questionnaire.").
The Magistrate Judge has reviewed plaintiff's May 20, 1998, Amended Complaint, his June 29, 1998, October 26, 1998, and March 29, 1999, Briefing Order responses, as well as the Grievances attached to plaintiff's March 23, 1998, original complaint, the September 14, 1998, Motion for Summary Judgment and Injunctive Relief from the Court, and plaintiff's September 21, 1998, "Grievances", along with the facts alleged by plaintiff to determine if his claim presents grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
Two elements are necessary for recovery in this type of suit: (1) the plaintiff must show the defendant deprived him of a right secured by the Constitution and laws of the United States; (2) the plaintiff must show the deprivation was committed under color of law, usually by a state official or a private individual in conspiracy with such an official. Adickes v. Kress, 398 U.S. 144, 149, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970). Although expressly required to present facts to support the contention that the acts of these inmate defendants were performed under color of state law, plaintiff failed to do so. In fact, plaintiff's allegations clearly demonstrate that the inmate defendants were not acting under color of state law, but, accepting plaintiff's allegations as true, were simply engaging in illegal acts. It is clear plaintiff can show no basis to support a claim against the inmate defendants under section 1983. If no viable claim could be included in an amended petition with regard to the facts already plead, the court may dismiss with prejudice. Jones v. Greninger, 188 F.3d 322, 327 (5th Cir. 1999). Consequently, plaintiff's claims against defendants PRUITT, HOLLAND, CHUBB, FRAZIER, and CHRIS should be dismissed with prejudice for failure to state a claim on which relief can be granted.
The "color of law" inquiry centers on whether a person who is affiliated with a state government or its political subdivision has used his position to deprive another of his constitutional rights. "[T]he nature of the act performed, not the clothing of the actor or even the status of [the party] . . ., determines whether the officer has acted under color of law." Colon v. Lomelo, 575 F. Supp. 664,667 (S.D.Fla. 1983) (quoting Johnson v. Hackett, 284 F. Supp. 933,937 (E.D. Pa. 1968)). Action taken "under color of" state law is not limited only to that action taken by state officials pursuant to state law. Monroe v. Pape, 365 U.S. 167, 185,81 S.Ct. 473, 482,5 L.Ed.2d 492 (1961). It encompasses "[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law. . . ."Id. at 184, 81 S.Ct. at 482.
See plaintiff's March 29, 1999, response to the Court's third Questionnaire at question no. 1.
As to the remaining defendants, all prison officials at the Clements Unit, plaintiff asserts a failure to protect claim. Liability for an Eighth Amendment failure to protect claim requires the same delinquency as it does for denial of medical care, Johnston v. Lucas, 786 F.2d at 1259; thus, there must be an allegation of facts which will support deliberate indifference on the part of prison officials, Wilson v. Seiter, 504 U.S. 962, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). Not every injury suffered by a prisoner at the hands of another rises to the level of a constitutional violation. Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 1977, 128 L.Ed.2d 811, 823 (1994). The plaintiff prisoner must show: (1) he is incarcerated under conditions "posing a substantial risk of serious harm," and (2) that the defendant prison official's state of mind is one of "deliberate indifference" to the prisoner's health or safety. Horton v. Cockrell, 70 F.3d 397, 401 (5th Cir. 1995); Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999). "[A]n official's failure to alleviate a significant risk that he should have perceived but did not, while no cause of commendation, cannot under our cases be condemned as infliction of punishment." Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 1979, 128 L.Ed.2d 811, 823 (1994).
Plaintiff has failed to allege specific facts to support his claims against the defendant prison officials, but, instead, has advanced allegations based on speculation and assumption.
By his May 20, 1998, Amended Complaint, plaintiff alleges defendants SANDERS and PALMEIHER failed to respond to plaintiff's "numerous grievances for injury by inmates bloods gang." Review of plaintiff's grievances, reveals that each contains merely vague and general allegations that there are too few white inmates in plaintiff's pod, leading to an attempt by black gang members to extort white inmates for the privilege of watching television in the dayroom. Plaintiff's grievances are inconsistent. By grievance no. 98037754, submitted on February 8, 1998, plaintiff complains that he is subject to retaliation from the Blood's gang because he asked his cellmate to stop inappropriate sexual behavior directed at the female guards. By grievance number 98057852, submitted February 28, 1998, plaintiff complains that he should be single celled because he is a psychiatric patient and needs to be protected from black inmates attempting extortion. Plaintiff asks that the pod be racially balanced. By grievance no. 98055112, also submitted on February 28, 1998, plaintiff complains that he has tried to inform defendant SANDERS of "a security problem" on his pod. Plaintiff asks that his constitutional rights be upheld "as only 3 white inmates who are all in poor pyshical [sic] health placed in jeopardy of our life by Bloods black gang members who want all of us to ride or pay them to come to DayRoom to watch T.V." Plaintiff states he "expect[s] the Warden to do something" and requests racial parity on the pod. The prison official's response was that no evidence was found to support plaintiff's claims and no further action would be taken at that time. By another grievance showing the same number but dated February 27, 1998, plaintiff complains of attempted extortion by black gang members and promises to see prison officials in court. Lastly, by grievance no. 98054934, submitted March 2, 1998, plaintiff again complains that black gang members are attempting to extort the white inmates and requests that "gang members [be] removed and disruptive behavior . . . [be] removed" from the pod. The response by prison officials indicates that this issue was earlier addressed on grievance 98055112. Plaintiff alleges he wrote defendant PALMEIHER an 1-60 stating "that inmate's (Blood's) were trying to hog me to pay exthortion [sic]."
Grievances are attached to plaintiff's March 23, 1998, original complaint, the September 14, 1998, Motion for Summary Judgment and Injunctive Relief from the Court, and plaintiff's September 21, 1998, "Grievances".
Plaintiff has literally inundated the Court with thirty-nine grievances, most of which are irrelevant to his cause of action and concern matters ranging from security complaints about the Robertson Unit to complaints at the Clements Unit about not getting to shave often enough, the gambling activities of other inmates, or a disciplinary hearing on a much later and an unrelated disciplinary case.
Plaintiff has submitted six grievances on this issue; however, one was a Step 2 grievance which was not, therefore, processed at the unit level by the warden or any member of the warden's office. Instead, as the grievance shows on its face, it was processed by the Regional Director's office. Consequently, only the five Step 1 grievances are relevant for the issuance of what plaintiff complained of and when.
See plaintiff's June 29, 1998, response to question no. 5.
See plaintiff's October 26, 1998, response to question no. 5.
Neither the alleged 1-60 nor any of these grievances provides specific facts of any specific incident involving any specific inmate(s) relating to plaintiff's claims. Even if the Court assumes defendants SANDERS and PALMEIHER had personal knowledge of the contents of each of these grievances, such amorphous statements expressing dissatisfaction and requesting racial parity on the pod are not sufficient, either individually or collectively, to inform officials of facts from which they could infer plaintiff was confined in conditions "posing a substantial risk of serious harm." Horton v. Cockrell, 70 F.3d 397, 401 (5th Cir. 1995). Glaringly absent from all of plaintiff's reports to corrections officials is any identification of the participating inmates who are threatening and/or extorting plaintiff. Thus, plaintiff has failed to assert a claim of deliberate indifference by either or both of these defendants and has, therefore, failed to state a claim on which relief can be granted.
Plaintiff's claim against defendant DUFFY, the Building Captain of plaintiff's pod at the time of the attack, fails for the same reason. Plaintiff alleges he wrote defendant DUFFY numerous times, sending him an 1-60 and grievances by truck mail and informing him that "[plaintiff] was in fear of [his] life as gang member's had a hit out on [plaintiff]." Again, assuming defendant DUFFY received the 1-60 and had personal knowledge of the contents of each of plaintiff's grievances, plaintiff has shown he did not inform defendant DUFFY of facts from which he could infer plaintiff was confined in conditions "posing a substantial risk of serious harm." Horton v. Cockrell, 70 F.3d 397, 401 (5th Cir. 1995). Thus, plaintiff has failed to present facts to support a claim of deliberate indifference by defendant DUFFY and has, therefore, failed to state a claim on which relief can be granted.
As to defendant ROACHE, by his May 20, 1998, Amended Complaint, plaintiff claims ROACHE did not provide security but watched as plaintiff was beaten. By his June 29, 1998, response to the Court's Questionnaire, in response to question no. 9, plaintiff agreed that his only claim against defendant ROACHE was that he did not stop the attack. When asked if he knew whether defendant ROACHE called for other officers to come to the scene, plaintiff responded "No." When asked what defendant ROACHE did when he saw plaintiff being attacked, plaintiff gave a nonresponsive answer. Further, when asked how he knew that was all that defendant ROACHE had done and whether he had any way of knowing if ROACHE had done anything more, plaintiff gave a further nonresponsive answer. Plaintiff has failed or refused to provide the very facts necessary to support his claim of deliberate indifference by defendant ROACHE. He does not state how he knows ROACHE was able or actually did witness the attack nor does he state what ROACHE did during the attack or how he has knowledge of such facts and, instead, refuses to address these issues. The gravamen of the plaintiff's claim appears simply to be that defendant ROACHE breached his duty to protect plaintiff by not stopping the attack. Conclusory allegations that a prison official acted "willfully, knowingly, purposely and maliciously" in failing to protect an inmate will allege, at best, a negligence claim when such allegations are unsupported by specific facts. Jacquez v. Procunier, 801 F.2d 789, 792 (5th Cir. 1986). Similarly, plaintiff failed to support his claim of deliberate indifference by defendant ROACHE with specific facts, relying instead on vague and conclusory allegations and has, thus, failed to state facts to support a claim of deliberate indifference by this defendant.
See plaintiff's June 29, 1998, response to question no. 10.
See plaintiff's June 29, 1998, response to question no. 11.
See plaintiff's June 29, 1998, response to question no. 12.
The Court notes that a picket officer is not allowed to breach security by deserting his post and, in fact, a single officer would not not allowed to enter a pod or dayroom to attempt to stop four or five inmates from attacking another inmate until help in the form of other guards arrives.
After winnowing the factual assertions from the substantial chaff of plaintiff's conclusory allegations, it is clear that, at most, plaintiff has alleged facts which might, or might not, support a claim of negligence; however, section 1983 imposes liability for deprivation of constitutionally protected rights, not for violations of tort duties of care. Griffith v. Johnston, 899 F.2d 1427, 1435 (5th Cir. 1990); see, also, Daniels v. Williams, 474 U.S. 327, 331-34, 106 S.Ct. 662, 664-67, 88 L.Ed.2d 662 (1986).
Consequently, to the extent plaintiff alleges mere negligence against defendants SANDERS, PALMEIHER, DUFFY, and ROACHE, plaintiff's claims lack an arguable basis in law and are frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
Further, and in the alternative, plaintiff has failed to exhaust administrative remedies. Title 42, United States Code, 1997e(a), as amended by Section 803 of the Prison Litigation Reform Act of 1995, provides that "[n]o action shall be brought with respect to prison conditions . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). By requesting injunctive relief, i.e., a return of classification, plaintiff has submitted a petition for relief that is subject to section 1997e's exhaustion requirement. Whitley v. Hunt, 158 F.3d 882, 887 (5th Cir. 1998).
Since dismissal under section 1997e is made on pleadings without proof, if the plaintiff has alleged exhaustion with sufficient specificity, a lack of admissible evidence in the record does not form the basis for dismissal. Underwood v. Wilson, 151 F.3d 292 (5th Cir.), cert. denied, 526 U.S. 1133, 199 S.Ct. 1809, 143 L.Ed.2d 1012 (1999). Plaintiff has not alleged exhaustion with any specificity in that, although he has provided copies of thirty-nine grievances, only four of them were submitted after the attack complained of and none of the four concern that event or the failure of officials to protect plaintiff in connection with it.
Grievances are attached to plaintiff's March 23, 1998, original complaint, the September 14, 1998, Motion for Summary Judgment and Injunctive Relief from the Court, and plaintiff's September 21, 1998, "Grievances".
Instead, plaintiff has provided grievance no. 98098124, submitted April 22, 1998, more than a month after the March 9, 1998, incident by which plaintiff complains that another inmate is "hollering out his door basket ball bets" and three other cells have "knock dominos games". Plaintiff requests that an inmate Holland be stopped from running a gambling casino on the pod. By grievance no. 98116433, submitted May 4, 1998, plaintiff complains that he was in fear of his life on April 22, 1998, when he was given a disciplinary case, and that his grandmother had recently died and his parents had both had surgery, all of which caused him great mental stress. He requests "mercy in major court." By grievance no. 98131480 and another grievance given the same number, both submitted May 25, 1998, plaintiff complains of the disciplinary hearing he received on a disciplinary case, claiming it was a kangaroo court. All the remaining thirty-five grievances submitted by plaintiff were submitted before the March 9, 1998, incident.
None of these grievances concerns a failure to protect by one or more of the defendants, not even by defendant ROACHE. The omission of any step 2 grievances on the relevant issues from the grievances plaintiff submitted in response to Question no. III of the Complaint form indicates a failure to exhaust administrative remedies on these issues; however, the Court's review has included every grievance contained in the entire file, which plaintiff has repeatedly clogged with illegible, incoherent, or unnecessary pleadings and attachments which have served only to delay consideration of his action.
By choosing to file and pursue suit before meeting the section 1997e exhaustion of administrative remedies requirement, plaintiff has sought relief to which he was not entitled. Id. Further, because dismissal may serve as a deterrent to future premature filings by this plaintiff and other potential litigants, the claims against these defendants should be dismissed with prejudice for purposes of proceeding in an in forma pauperis action pursuant to Title 28, United States Code, section 1915(d). Id.
CONCLUSION
For the reasons set forth above, and pursuant to Title 28, United States Code, sections 1915A and 1915(e)(2), as well as Title 42, United States Code, section 1997e(c)(1),IT IS HEREBY ORDERED that the Civil Rights Claims against defendants PRUITT, HOLLAND, CHUBB, FRAZIER, and CHRIS be DISMISSED WITH PREJUDICE FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED, and that plaintiff's Civil Rights Claims against the remaining defendants, SANDERS, PALMEIHER, DUFFY, and ROACHE, be DISMISSED WITH PREJUDICE FOR PURPOSES OF PROCEEDING IN AN IN FORMA PAUPERIS PROCEEDING PURSUANT TO TITLE 28, UNITED STATES CODE, SECTION 1915(d) AND AS FRIVOLOUS.
LET JUDGMENT BE ENTERED ACCORDINGLY.
IT IS SO ORDERED.